Filed 5/29/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ERICSON TINGCUNGCO,

Defendant;

ALLEGHENY CASUALTY COMPANY,

Real Party in Interest and 

Appellant.

 B253003

 (Los Angeles County 

 Super. Ct. No. BA401644)

APPEAL from an order of the Superior Court of Los Angeles County. 

Maral Injejikian, Judge. Affirmed. 

John M. Rorabaugh for Real Party in Interest and Appellant.

Ruben Baeza, Jr., Assistant County Counsel and Joanne Nielsen, Deputy County 

Counsel for Plaintiff and Respondent.

__________________
2

Allegheny Casualty Company appeals from the order denying its motion to vacate 

its forfeiture of a bail bond, contending that the applicable statute required additional 

tolling of the forfeiture period while prosecutors decided whether to extradite a fugitive 

who had been located in a foreign country. We disagree and affirm the order.

FACTS AND PROCEDURAL HISTORY

On August 30, 2012, Allegheny Casualty Company, through its agent, posted 

$50,000 bail for Ericson Tingcungco, who had been charged with burglary. When 

Tingcungco did not appear as ordered on September 5, 2012, the trial court forfeited bail. 

The appearance period – the period during which the bond might be exonerated if 

Tingcungco appeared – was later extended to October 4, 2013.

On October 1, 2013, Allegheny notified the Los Angeles County District 

Attorney’s office that Tingcungco had been located in Mexico, and asked it to decide 

whether to begin extradition proceedings. If the district attorney elected not to do so 

within the appearance period, then the bail bond would be exonerated. (Pen. Code, 

§ 1305, subd. (g).)

1

 On October 2, 2013, Allegheny filed a motion asking the trial court 

to further toll the appearance period while the district attorney decided whether to pursue 

extradition and then either continue the tolling period during extradition proceedings or 

vacate the forfeiture and exonerate bail, depending on which course the district attorney 

pursued.

The district attorney opposed the motion, contending that section 1305, 

subdivision (g) imposed a hard deadline that prevented vacating a bond forfeiture if 

prosecutors had not elected whether to extradite within the appearance period, even if the 

fugitive had not been located until right before that period ended. The opposition was 

supported by the declaration of prosecutor Ann Huntsman, who set forth in detail the 

lengthy and complicated steps that must be taken before deciding whether to extradite a 

fugitive located in a foreign country. According to Huntsman, it usually took two weeks 

 

1 All further undesignated section references are to the Penal Code.
3

to make that decision. The trial court denied Allegheny’s motion. Allegheny contends 

the trial court erred.2

STANDARD OF REVIEW

Because we interpret a statute based on undisputed facts, we are not bound by the 

trial court’s interpretation of the statute, and instead decide the correct interpretation as a 

matter of law. (Pasadena Metro Blue Line Construction Authority v. Pacific Bell 

Telephone Co. (2006) 140 Cal.App.4th 658, 663-664.) The fundamental rule of statutory 

construction is to ascertain the intent of the Legislature in order to effectuate the purpose 

of the law. In doing so, we first look to the words of the statute and try to give effect to 

the usual, ordinary import of the language, at the same time not rendering any language 

mere surplusage. (Id. at p. 664.) The words must be construed in context and in light of 

the nature and obvious purpose of the statute where they appear. The statute must be 

given a reasonable and commonsense interpretation consistent with the apparent purpose 

and intention of the Legislature, practical rather than technical in nature, and which, when 

applied, will result in wise policy rather than mischief or absurdity. (Ibid.) If the 

language of a statute is clear, we should not add to or alter it to accomplish a purpose 

which does not appear on the face of the statute or from its legislative history. Statutes 

must be harmonized both internally and with each other. (Ibid.)

DISCUSSION

1. The Statutory Framework and the Seneca Decision

If a criminal defendant out on bail fails to appear when lawfully required to do so, 

the trial court must declare bail forfeited. (§ 1305, subd. (a).) The clerk must mail notice 

of forfeiture to the surety for bonds greater than $400. Adding in five days for mailing, 

the surety then has 185 days to bring the defendant in to court. (§ 1305, subds. (b)-(c).) 

 

2 The record is silent as to whether the district attorney decided to extradite

Tingcungco.
4

If the defendant appears within that period the court must vacate the forfeiture and 

exonerate the bond. (§ 1305, subd. (c)(1).) Upon a showing of good cause the surety 

may seek an extension of up to another 180 days. (§ 1305.4.) If that motion is granted, 

the defendant’s appearance during the extension period also requires vacating the 

forfeiture and exonerating the bond. (People v. Seneca Ins. Co. (2010) 189 Cal.App.4th

1075, 1079 (Seneca).)

At issue here is section 1305, subdivision (g), which applies to bailed defendants 

who flee to a foreign country but are not in custody there. It reads: “In all cases of 

forfeiture where a defendant is not in custody and is beyond the jurisdiction of the state, 

is temporarily detained by a bail agent, in the presence of a local law enforcement officer 

of the jurisdiction in which the defendant is located, and is positively identified by that 

law enforcement officer as the wanted defendant in an affidavit signed under penalty of 

perjury, and the prosecuting agency elects not to seek extradition after being informed of 

the location of the defendant, the court shall vacate the forfeiture and exonerate the bond 

on terms that are just and do not exceed the terms imposed in similar situations with 

respect to other forms of pretrial release.” (§ 1305, subd. (g).)3

The Seneca court considered the effect of that provision where the surety notified 

the prosecutor that its fugitive on bail had been located in a foreign country eight months 

before the bond exoneration period was set to end. Although the prosecutor said she 

would seek extradition, she had not initiated the process by the time the exoneration 

period ended. The surety moved to either: (1) vacate the forfeiture and exonerate bail 

because the prosecutor’s failure to initiate extradition proceedings was effectively a 

decision not to extradite; or (2) toll the statutory appearance deadline so the prosecutor 

could pursue extradition. The trial court denied that motion.

The Seneca court affirmed. Applying the rules of statutory construction, it 

concluded: “A bail bond is not exonerated simply because the People have not 

 

3 Respondent does not contend on appeal that Allegheny failed to satisfy any of the 

requirements of section 1305, subdivision (g) other than obtaining a timely decision 

whether or not to extradite Tingcungco.
5

completed (or even initiated) extradition of the defendant before the end of the bond 

exoneration period.” (Seneca, supra, 189 Cal.App.4th at p. 1082, italics added.) Instead, 

judgment must be entered in the amount of the bond unless the fugitive defendant is 

brought into court or the prosecutor foregoes extradition within the bond appearance 

period. “The statutory scheme does not authorize additional extensions or tolling of the 

bond exoneration period in the circumstances presented.” (Ibid.)

The Seneca court acknowledged that the bail statutes must be strictly construed to 

prevent forfeiture, and also recognized the potential for unfairness if prosecutors either 

falsely elected to extradite and then abandoned their efforts, or did nothing. (Seneca, 

supra, 189 Cal.App.4th at pp. 1082-1083.) Even so, the language of the statutory scheme 

did not support the surety’s position because exoneration of the bond was contingent on 

the return of the defendant, not the initiation of extradition proceedings. “We are loathe 

to impose nonstatutory deadlines on prosecutors to initiate the process of extradition or to 

otherwise require prosecutors to pursue extradition on a particular timetable.” (Id. at 

p. 1083.)

2. The Legislative Response to Seneca

In February 2012, a bill was introduced in the California Senate to amend 

section 1305, subdivision (g) to accommodate instances where the prosecutor does not 

make an extradition decision within a reasonable time after the surety notifies it that a 

fugitive on bail has been located in a foreign country. (Sen. Bill No. 989 (2011-2012 

Reg. Sess.) as introduced Feb. 1, 2012.) The proposed amendment would have added the

following language to subdivision (g): “If the prosecuting agency . . . fails to make an 

extradition decision within a reasonable period of time after receipt of the [notification] 

affidavit the bond shall be exonerated. The court shall order the tolling of the 180-day 

period provided in this section pending the prosecuting agency’s . . . extradition decision. 

If the prosecuting agency . . . proceeds with the extradition, and upon motion by the 

surety or bail agent, the court shall order the tolling of the 180-day period provided in this 

section from the date on which the surety or bail agent delivered the affidavit to the 
6

prosecuting agency . . . until such time as the bond is exonerated or the extradition 

process is completed.” (Ibid.)

A bill analysis discussed Seneca in detail and cited the author as stating that the 

bill was needed “where the prosecutor declines to make a decision about extradition in a 

timely fashion.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 989 (2011-2012 

Reg. Sess.) April 24, 2012, p. G.) It therefore appears that the bill as introduced was in 

reaction to Seneca.

However, the bill was amended one week later to eliminate the provision 

concerning a prosecutor’s delay in deciding whether to extradite and replaced it with a 

new subdivision (g)(2), which read: “In cases arising under this subdivision [(g)], if the 

bail agent and the prosecuting attorney agree that additional time is needed to return the 

defendant to the jurisdiction of the court, the court may, on the basis of the agreement, 

toll the 180-day period within which to vacate the forfeiture for the length of time agreed 

upon by the parties.” (Sen. Bill No. 989 (2011-2012 Reg. Sess.) as amended May 1, 

2012, p. 5.)

An analysis of the amended version of the bill quotes the author as stating that the 

new version “would allow a court to toll the 180-day period within which to vacate bail 

forfeiture, if it is agreed by both the bail agent and prosecuting attorney that additional 

time to return a fugitive defendant to the jurisdiction of the court is necessary. The bill 

simply allows both parties to come to an agreement if more time is needed to return a 

fugitive to custody.” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 989 

(2011-2012 Reg. Sess.) as amended May 17, 2012, prepared for June 12, 2012 hearing, 

p. 4.) A representative of the bail bond industry was quoted characterizing the new 

version of Senate Bill No. 989 as a “modest bill [which] would allow the court to 

postpone the forfeiture of bail bonds in cases where additional time is necessary to 

extradite defendants from foreign jurisdictions. Importantly, the forfeiture could be 

postponed only when the local prosecutor agrees to a postponement. The bill gives 

district attorneys complete control over whether any postponement will be granted.” (Id.

at p. 6.)
7

The version of the bill that was eventually enacted made minor changes to the 

amended version and relocated it as a separate subdivision (h): “In cases arising under 

subdivision (g), if the bail agent and the prosecuting agency agree that additional time is 

needed to return the defendant to the jurisdiction of the court, and the prosecuting agency 

agrees to the tolling of the 180-day period, the court may, on the basis of the agreement, 

toll the 180-day period within which to vacate the forfeiture. The court may order tolling 

for up to the length of time agreed upon by the parties.” (Stats. 2012, ch. 129, § 1.)

3. The Legislative History Precludes the Tolling Period Extension Advocated by 

Allegheny

Allegheny contends that bail should have been exonerated because it fully 

complied with its obligations under section 1305, subdivision (g), and its right to 

exoneration should not be frustrated by matters solely within the prosecutor’s control –

the decision whether to extradite. Allegheny also contends that a fair reading of 

subdivision (h) should allow for further tolling while the prosecutor makes its decision. 

Our reading of the legislative history leads us to reject these contentions.

The evolution of a proposed statute after its original introduction is helpful when 

determining legislative intent. (People v. Hunt (1999) 74 Cal.App.4th 939, 947.) The 

Legislature’s rejection of a specific provision which appeared in the original version of 

an act supports the conclusion that the act should not be construed to include the omitted 

provision. (Ibid.) While unadopted proposals may sometimes have little value when 

determining legislative intent (California Court Reporters Assn. v. Judicial Council of 

California (1995) 39 Cal.App.4th 15, 32), the amendments made to Senate Bill No. 989 

take on extra significance when viewed in conjunction with another rule of statutory 

construction: The Legislature is deemed to be aware of judicial decisions already in 

existence and to have enacted or amended a statute in light of those decisions. Therefore 

we may assume that the Legislature intended to maintain a consistent body of rules and to 

adopt the meaning of statutory terms already construed. (People v. Scott (2014) 

58 Cal.4th 1415, 1424; People v. Garcia (2006) 39 Cal.4th 1070, 1087-1088 
8

[Legislature’s failure to amend statute in light of appellate decision showed it did not 

intend to invalidate that decision].)

As introduced, Senate Bill No. 989 would have directly addressed and remedied 

the problem at issue here: the need to further toll the exoneration period while the 

prosecutor decides whether to extradite a fugitive on bail located in a foreign country. 

While that version of the bill was still in play, a bill analysis discussed Seneca in detail in 

a manner that suggested the bill was addressing that decision. The bill was then amended 

to strip out that provision in its entirety and replace it with a far different tolling 

mechanism. Under the bill as amended and eventually enacted, the trial court could only 

extend the exoneration period based on an agreement by the prosecutor to do so if more 

time were needed to extradite the defendant. This language therefore presumes that a 

decision to extradite was made.

We recognize that the facts at issue in Seneca were different from those here. In 

Seneca, the district attorney had decided to extradite but did not move the process along, 

whereas here no decision to extradite had been made. Even so, Seneca employed broad 

language concerning the limited availability of tolling under section 1305, subdivision 

(g). According to Seneca a bond is not exonerated just because the prosecutor had not 

completed “or even initiated” extradition before the bond exoneration period ended. 

(Seneca, supra, 189 Cal.App.4th at p. 1082.) The Seneca court also noted that bond 

exoneration was contingent upon return of the defendant within the exoneration period, 

not the initiation of extradition proceedings. (Ibid.)

The Senate bill analysis that discussed Seneca picked up on this language, 

characterizing the holding to mean that “where the prosecution has not made a decision 

whether or not to seek extradition and the 180-day period before forfeiture runs, the bond 

must be forfeited.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 989 (2011-

2012 Reg. Sess.) April 24, 2012, p. I.) Thus, it appears the Legislature was initially 

motivated to address that aspect of Seneca but deliberately chose not to extend tolling to

those situations in which the prosecutor had not made the extradition decision before the 

180-day period expired.
9

To recap, Allegheny contends that: (1) section 1305 subdivision (g) should be 

read to extend the bond exoneration period while the prosecutor decides whether to 

extradite; and (2) subdivision (h) should be expanded to allow for tolling in that situation 

as well. As noted, the Legislature considered an amendment to subdivision (g) that 

would have allowed for such tolling, but instead adopted subdivision (h), which, as we 

read it, allows tolling only after the prosecutor has decided to extradite but needs more 

time to do so. Based on the legislative history, Allegheny’s proposed construction of 

subdivisions (g) and (h) is untenable.

Allegheny also contends that its inability to produce Tingcungco before the 

exoneration deadline should be excused under the contract doctrine of impossibility (Civ. 

Code, § 1511) because the district attorney failed to make a timely extradition decision. 

Allegheny cites two cases for this proposition: People v. Meyers (1932) 215 Cal. 115 

(Meyers); and People v. American Surety Insurance Co. (2000) 77 Cal.App.4th 1063 

(American Surety). Neither is applicable.

The Meyers court held that a bond should be exonerated because the bondsman 

would have to violate a court order in another county and thus be liable for contempt in 

order to do so. (Meyers, supra, 215 Cal. at p. 119.) The fugitive defendant in American 

Surety, supra, 77 Cal.App.4th 1063 was deported to Mexico and barred from reentering 

the United States for a drug offense conviction. The American Surety court held that bail 

was exonerated under section 1305, subdivision (d), which requires vacation of forfeiture 

and exoneration of a bond when the defendant is permanently unable to appear in court 

due to, among other reasons, detention by civil authorities.

Myers long pre-dates section 1305 and neither case concerns subdivisions (g) and 

(h). Given the Legislature’s decision to forego the opportunity to abrogate Seneca and 

instead adopt a tolling provision that requires the agreement of the prosecutor after a 

decision to extradite has been made, we decline to adopt the interpretation advanced by 

Allegheny. Instead, we conclude that compliance with subdivision (g) requires the surety 

to locate the fugitive far enough in advance of the end of the 180-day appearance period 

to allow the prosecutor to decide whether or not to extradite. If the prosecutor chooses to 
10

extradite before the appearance period ends, tolling may be granted under subdivision (h), 

but only if the prosecutor, having decided to extradite, agrees to do so.

Finally, Allegheny contends that People v. Lexington National Insurance Corp.

(2010) 181 Cal.App.4th 1485 (Lexington), supports its contention that the exoneration 

period should have been tolled while the district attorney made an extradition decision. 

Lexington is inapplicable. The fugitive defendant in Lexington was in custody in 

Virginia. The surety moved to vacate the forfeiture and exonerate the bond. When the 

trial court denied that motion, the surety asked the trial court to toll the exoneration 

period. The trial court refused. On appeal the Lexington court held the trial court erred 

because the fugitive was under a temporary disability pursuant to section 1305, 

subdivision (e), which required tolling during that period. Tolling during the period of 

disability would have allowed the prosecutor time to decide whether to extradite the 

defendant under section 1305, subdivision (f), which applies when a fugitive on bail is in 

custody in another jurisdiction. (Lexington, at p. 1492.)

Allegheny’s reliance on Lexington’s statement concerning the prosecutor’s ability 

to make an extradition decision during the tolling period reads more into the tolling 

discussion than is there. The Lexington court did not approve of tolling under 

subdivision (f) – or by extension subdivision (g) – in order to provide time for an 

extradition decision. Instead, the tolling was required by subdivision (e) because of 

defendant’s disability by incarceration, making the prosecutor’s time to decide a byproduct of the tolling period.

We acknowledge that our holding may strike some as unfair and could discourage 

some sureties from pressing their search for a fugitive as the exoneration period deadline 

approaches.4 However, as respondent pointed out during oral argument, section 1305, 

subdivision (g) imposes other requirements that may be beyond a surety’s control after a 

fugitive is located and temporarily detained in another jurisdiction: bringing the fugitive 

 

4 We also note that Seneca at least raised the prospect that prosecutorial bad faith in 

delaying extradition might justify additional tolling. (Seneca, supra, 189 Cal.App.4th at 

p. 1082.)
11

to a local law enforcement officer in that jurisdiction and getting the officer to identify 

the defendant in an affidavit. It may not be possible to accomplish those tasks when a 

fugitive is located and detained as close to the end of the exoneration period as occurred 

here. At bottom, this was (and may again become) an issue for the Legislature to resolve. 

Based on the current statutory scheme and its legislative history, we cannot adopt 

Allegheny’s interpretation of the applicable statutes.

DISPOSITION

The order denying vacation of forfeiture and exoneration of the bond is affirmed. 

Respondent shall recover its appellate costs.

RUBIN, J.

WE CONCUR:

BIGELOW, P. J.

FLIER, J.